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TMI Blog2018 (11) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... d 04.05.2018 for the assessment year 2008-09 (Entry Tax). Later, as during pendency of the petition a further notice of demand dated 15.05.2018 was issued, the writ petition was got amended so as to challenge the subsequent demand notice. The amendment was allowed and the writ petition was accordingly amended. On the amendment of the writ petition though the challenge continues to the demand notice dated 04.05.2018 (annexure-1 to the petition) demanding interest on entry tax but in substance as the said notice merges in the subsequent notice dated 15.05.2018, the challenge is basically to the subsequent notice. Sri Manish Goyal, at the very out set took a preliminary objection regarding the maintainability of the writ petitions. He contends that the impugned demand notices are in pursuance to the orders of assessment of entry tax which are final and conclusive and as such are consequential in nature which cannot be assailed independently more particularly when the writ petitions challenging the orders of assessment of entry tax for the assessment years in question have been decided and no relief has been granted regarding interest on entry tax. The issue of levy/demand of interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pursuant to the Act No.30 of 2007, assessment order and the impugned notice dated 04.05.2018. (iia) Issue a suitable writ or direction in the nature of Certiorari quashing the impugned notice dated 15.05.2018 issued by the respondent No.3 (Annexure No.13) to the writ petition. (iib) Issue a suitable writ or direction in the nature of Prohibition restraining the respondents, their servants, agents or representatives from in any manner realizing any interest on the Entry tax from the petitioner pursuant to the Act No. 30 of 2007, assessment order and the impugned notice dated 15.05.2018. (iii) Issue a suitable writ order or direction in the nature of mandamus commanding the respondents to adjust the interest payable by the Respondents on the amounts paid by the Petitioner upto 23.09.2007 towards the entry tax together with interest. (iv) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case in the facts and circumstances of the case. (v) Award the costs of the petition to the petitioners." In view of the above reliefs claimed, it is crystal clear that the petitioner is aggrieved by the levy an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uential order would be of no consequence and serve no purpose until and unless the main/basic order on which the demand is based is challenged. A challenge to the consequential order without challenging the basic order on which the consequential order has been based cannot be entertained. Thus, the party challenging the consequential order is obliged to challenge the basic order also and only if the same is found to be illegal the correctness of the consequential order can be examined. The petitioner has not challenged any of the basic order on which the impugned demand is based. Therefore, in the light of the above facts and legal position, the petitioner is not entitle to any relief in respect to the consequential demand raised against it regarding interest on entry tax. Secondly as stated earlier, the assessment orders of entry tax in relation to the petitioner have already attained finality as the challenge to the same stand defeated in the earlier round of litigation. The petitioner cannot maintain successive writ petitions for the same cause of action in respect whereof earlier petitions filed were decided but without any relief in respect of levy of interest on entry tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure which provides for withdrawal of the suit and the consequences thereof held that the principle underlying the above Rule is that when a plaintiff once institute a suit in a court and thereby avails of a remedy provided to him in law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without permission of the court to file a fresh suit. The above Rule is to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without the permission of the court. The principle underlying the said Rule is founded on public policy and is different from the Rule of res judicata contained in Section 11 of the Code of Civil Procedure. The Supreme Court held as under:- "the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above." In Direct Recruit Class-II Engineer Officers Association Vs. State of Maharashtra (1990) 2 SCC 715 it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l applicability of the principles of res judicata and other ancillary issues argued by the parties, we are of the opinion as the petitioner has only challenged the demand of interest on entry tax without challenging the basic order of assessment thereof having the interest on entry tax as one of the components and at the same time as the challenge to the assessment orders in the earlier round of litigation has not yielded fruits, the petitioner is not entitle to maintain the present set of petitions and no relief in that regard can be granted to it irrespective of the fact that the issue had remained undecided earlier. Moreover, the petitioner had a better alternative remedy of disputing the correctness of the levy and demand of interest on entry tax on fact and law in appeal. Besides the above, prima facie the levy of interest on entry tax is not without jurisdiction as by virtue of Section 13 of the Entry Tax Act, certain provisions of U.P. Value Added Tax Act, 2008 (hereinafter referred to as the U.P. VAT Act) viz. Section 33 which provides for levying simple interest at the prescribed rate on tax mutatis mutandis apply in relation to realisation of entry tax. This aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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